HELMS v. ZEITZEFF (05/21/62)

May 21, 1962

HELMS, APPELLANT,v.ZEITZEFF, APPELLANT.

Appeals, Nos. 178, 207, 208, 209, 210 and 211, Jan. T., 1962, from decree of Court of Common Pleas of Delaware County, March T., 1953, No. 2115, in case of Paul E. Helms v. Joseph Zeitzeff, trustee under will of Rebecca Zeitzeff, deceased, and City of Chester. Decree, as modified, affirmed.

Albert Blumberg, with him McClenachan, Blumberg & Levy, for defendants.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 407 Pa. Page 483]

OPINION BY MR. JUSTICE MUSMANNO

Prior to 1924, a small creek known as Lamokin Run babbled its way through Chester in Delaware County, crossing over a road known as Ninth Street and pursuing its course over other lands until it joined the parent waters of the Delaware River. In 1924, the City of Chester made some improvements on Ninth

[ 407 Pa. Page 484]

Street and, in doing so, lowered the course of Lamokin Run so that it flowed through a culvert beneath the thoroughfare.

E. R. Helms, owner of the property adjoining Ninth Street on the south side, laid pipes subterraneously to connect up with the city culvert and thus guide the creek through his land to the land south of his property. The owner of this lower property, S. R. Crothers, sank large domestic hot water boilers (with their ends knocked out) into the bed of the Lamokin Run to assist the creek on its way to the river. After sinking the pipes, he covered them with earth. From time to time dumped fill was poured over the pipes on both properties and eventually the pipes were no longer visible from the surface, which had now risen from 7 to 24 feet above the original level.

Since the hot water boilers had not been sealed together at the joints, all did not go well with the flow of the underground Lamokin Run, and finally came the day when the water no longer wended its way to the Delaware. Failing to locate an outlet, it backed up on to the Helms property, flooding basements and doing other damage.

In May, 1953, Paul E. Helms, who was now owner of the upper property, filed a complaint in equity in the Court of Common Pleas of Delaware County against Joseph Zeitzeff trustee under the will of Rebecca Zeitzeff, former owner of the subservient property, and Morris Zetizeff, life beneficiary under the trust. On February 3, 1960, by stipulation between the parties, Joseph Zeitzeff, Abe Zeitzeff, Edith Nemiroff and Roseanne Sterman were substituted for the original defendant, Joseph Zeitzeff, trustee under the will of Rebecca Zeitzeff.

Hearings were held before Chancellor DIGGINS on June 16, 1954, June 12, 1957, June 11, 1958 and December 17, 1959. ...

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